The
right to assemble, march, protest and demonstrate peacefully rests at the core
of functioning democratic systems, and is closely related to other cornerstones
of democracy and pluralism, such as freedom of expression and freedom of
association. An assembly means the intentional and temporary presence of a
number of individuals in a public place for a common expressive purpose. The
rights to peaceful assembly and to freedom of expression are enshrined in the article 10 of the Federal Constitution.
The
freedom of peaceful assembly, march, protest and demonstrate is associated with
the right to challenge the dominant views within society, to present
alternative ideas and opinions, to promote the interests and views of minority
groups and marginalized sections of society, and to provide an opportunity for
individuals to express their views and opinions in public, regardless of their
power, wealth or status.
The
protection of the freedom to peacefully assemble is crucial to creating a
tolerant and pluralistic society in which groups with different beliefs,
practices or policies can exist peacefully together. The Government should
protect and facilitate the opportunity for people to assemble peacefully. To
fail to do so would jeopardise the right to freedom of peaceful assembly and
the right to freedom of expression. The Government is under an obligation to
protect and promote these rights. There should be no unnecessary restrictions
on people’s rights to peaceful protest.
These
rights are not absolute, however, because protest invariably involves groups of
people with competing interests, including protestors, the individuals and
organisations that are protested against, the police, journalists and
bystanders. Only peaceful assemblies are protected. An assembly should be
deemed peaceful if its organizers have professed peaceful intentions and the
conduct of the assembly is non-violent.
Peaceful
protest has not always been so quietly accepted by those in powers. As Martin
Luther King, Jr once said that freedom is never voluntarily given by the
oppressor; it must be demanded by the oppressed. However, for most of human
history, any form of protest against the status quo, including peaceful
protest, was likely to be met with violence of one sort or another. For this
reason, public demonstrations have only recently become common ways of
registering disagreement with the government. In the past, overthrowing or
radically changing a government was almost certain to involve bloodshed, so
those opposed to the existing powers made sure to arm themselves in advance to
prepare for revolutionary war.
As
a fundamental right, freedom of peaceful assembly should, insofar as possible,
be enjoyed without regulation. Anything not expressly forbidden by law should
be presumed to be permissible, and those wishing to assemble should not be
required to obtain permission to do so. A presumption in favour of this freedom
should be clearly and explicitly established in law. The state’s positive
obligation to facilitate and protect peaceful assembly. It is the primary
responsibility of the state to put in place adequate mechanisms and procedures
to ensure that the freedom is practically enjoyed and not subject to undue
bureaucratic regulation. In particular, the state should always seek to
facilitate and protect public assemblies at the organizers’ preferred location
and should also ensure that efforts to disseminate information to publicize
forthcoming assemblies are not impeded.
Article
10 of the Federal Constitution guarantees every citizen with the right to
freedom of speech and assembly. In practice, Malaysia’s experience on many
counts of people’s right to exercise their freedom of expression is limited and
selectively based on the discretion of the government and its security
institutions like the police. Restrictions are usually justified under the
broad stroke of maintaining racial harmony and public order.
Malaysian
Federal Constitution provides a rather weak provision for freedom of speech
primarily as a result of amendments following the May 1969 clashes, known as
the Sensitive Matters Amendment to allow Parliament to “impose on the above
right, restrictions on eight grounds – public order, national security,
incitement and offence, friendly relations with other states, contempt of
court, contempt of Parliament, defamation, morality”. Several acts of law
regulate the freedoms granted by Article 10, such as the Official Secrets Act,
which makes it a crime to disseminate information classified as an official secret. Under
the Public Order (Preservation) Act 1958, the relevant Minister may temporarily
declare any area where public order is seriously disturbed or seriously
threatened to be a “proclaimed area” for a period of up to one month. The
Police have extensive powers under the Act to maintain public order in
proclaimed areas. These include the power to close roads, erect barriers,
impose curfews, and to prohibit or regulate processions, meetings or assemblies
of five persons or more. Other laws curtailing the freedoms of Article 10 are
the Police Act 1967, which criminalises the gathering of three or more people
in a public place without a licence, and the Printing Presses and Publications
Act 1984, which grants the Home Affairs Minister "absolute discretion"
in the granting and revoking of publishing permits, and also makes it a
criminal offense to possess a printing press without a license. The Sedition
Act 1948 makes it an offence to engage in acts with a "seditious
tendency", including but not limited to the spoken word and publications.
Recently in Malaysia, the Peaceful
Assembly Act 2011 was passed by Parliament on 29 November 2011, after six
amendments were made to the act in replacing the present legislative provision
in section 27 of the Police Act 1967. However, the act was passed with no
dissenting votes after the Opposition refused to take part in the debate and
staged a walkout. The Peaceful Assembly Act 2011 is to allow citizens to organize
and participate in assemblies peaceably and without arms. It seeks to allow
citizens to organize and participate in assemblies peaceably and without arms,
subject to restrictions deemed necessary and in the interest of public order
and security. The Act introduces the concept of “interests, rights and freedoms
of other persons”, with the police having to weigh such interests, rights and
freedoms with that of the persons who wish to assemble.
However,
this Act introduced several controversial and objectionable provisions. Among
them are prohibitions of street protests, prohibition of organization of
assemblies by persons below the age of twenty one years; prohibition of
participation in peaceful assemblies of children below the age of fifteen
years; Unduly heavy responsibilities and restrictions on organizers and
assemblies; and excessive fines for non-compliance of the Act.
Clause
4 of the Act
makes it clear that the right to organize or participate in an assembly
peaceably and without arms does not extend to non-citizens, an assembly held at
any prohibited place and within 50 meters from the limit of the prohibited
place. In the UK, Queensland and Finland, the
legislation that govern public assemblies do not make a distinction between the
right accorded to citizens and non citizens.
In the Act, however, is clearly stated that the right to organise or
participate in an assembly does not extend to a non citizen. However, section
27 of the Police Act does not distinguish between citizens and non citizens.
The Act therefore takes away the right of peaceful assembly from non citizens
which was recognised by section 27 of the Police Act. The Act provides for an outright
prohibition against an assembly held at any “prohibited place” and within fifty
meters from the said prohibited place. No such prohibition appears in other
jurisdictions which we consider as having a model piece of legislation.
The Peaceful Assembly Act 2011 also
not extended to a street protest (which is a form of assembly in motion or
procession already legally recognized in section 27 of the Police Act 1967) is
prohibited. “Street protest” which is defined in Paragraph 3 to mean; “an open
air assembly which begins with a meeting at a specified place and consists of
walking in a mass march or rally for the purpose of objecting to or advancing a
particular cause or causes”.
Paragraph 4(1) of the Act imposes an
outright ban on street protests. The current position is that if the police
issue a license under Section 27 (2) of the Police Act, 1967, a “street
protest” is permitted. Hence, the new provision in this “reforming” Act
make it worse by totally banning such types of assemblies.
This means that, under this Act, only
assemblies that are not “street protest” are permitted. However, such an assembly in
motion is permitted in most if not all of the jurisdictions which we would
consider as having a model piece of legislation. There have been several street
protests which were peaceful in Malaysia, for instance, the Bar’s Council Walk
for Justice in 2007.
The
clause also provides that a person below age 21 cannot be an organizer while a
child below the age of 15 cannot participate in an assembly. Any person who
recruits or brings a child to an assembly or allows a child to an assembly is
also deemed to commit an offence, and upon conviction can be fined up to RM20,
000. Section 4 of the Act prohibits a person below the age of twenty one years
to organise an assembly and the participation of a child below the age of
fifteen years in an assembly other than an assembly specified in the Second
Schedule.
The
regulation of the participation of children is restrictive and contrary to our
international obligations under the Convention of the Right of the Child (“CRC”) where Malaysia is a signatory.
On 6 June 2010, Malaysia withdrew its reservations to Articles 1, 13 and 15 of
the CRC, thus allowing children "the freedom to have their say, and the
right to form associations and assemble peacefully". Minister of
Women, Family and Community Development, Datuk Seri Shahrizat Abdul Jalil had
said on the same day that the government would give children the freedom to
have their say and the right to form associations and to assemble peacefully.
She said the move was in line with the recognition given to children's rights
as they would be the future leaders of the nation.
The
Act also stipulates that the organizer of an assembly must ensure the assembly
is in compliance with the law and does not commit any act or make any statement
that could promote ill-feeling, discontent or hostility among the public nor
disturb the public tranquility, while a participant should adhere to the orders
given by the police or organizer to conduct the assembly orderly.
Clause
8 of the Act also sets out the responsibilities of the police, where a police
officer may take measures deemed necessary to ensure orderly conduct of the
assembly, in accordance with the Act or any other written law. In other
jurisdictions, restrictions and conditions may be imposed on public assemblies.
In the UK, even though the words 'as appear to him necessary to prevent such
disorder, damage, disruption or intimidation' are stated in the Act, the
police may only impose conditions based on date, time and duration, place and
manner. In Finland and Queensland, conditions may be placed on payment of
clean-up costs, any inherent environmental factor, and cultural or religious
sensitivity.
However,
in the Peaceful Assembly Act 2011, the OCPD is given wide discretionary
powers to impose any restrictions other than those specifically mentioned above
as he deems necessary or expedient. Under Clause 14, an officer in charge
of a police district is required to respond to a notification of assembly
within 12 days upon receipt of the notification; he also needs to respond to organizers,
any restriction and condition to be imposed. In the UK, notification is not
needed for a public assembly. Notification is required for a public procession
in which 6 days notice is to be given before the date of the procession. In
Queensland, the arranger of an assembly shall notify not less than 5 business
days. In Finland, the arranger of an assembly shall notify the local police at
least 6 hours before the meeting. The Act further provides for late
notification if the arrangement of the meeting does not cause significant
disruption to public order. Under the Peaceful
Assemblies Act 2011 , written notice of at least 30 days must be given to the
police. Hence, spontaneous gatherings are not permitted. The notification period of 30 days
is unduly long and not in line with international norms. Further, the Act
ignores the possibility of an immediate public assembly or a spontaneous
assembly.
Clause
15 sets out the conditions and restrictions that may be imposed by the officer
in charge of the police district such as date, time and duration, and place of
assembly, manner of the assembly and conduct of participants during assembly. The
Act, empowered a police officer to arrest, without warrant, any organizer or
participant who refuses or fails to comply with any restriction and condition
imposed. In Finland, the powers of the police are spelt out extensively in the
Assembly Act. Section 20 states where necessary, the police may, before or
during the event, issue orders or instructions on the arrangement of a public
meeting or a public event for the purpose of maintenance of public safety or
security; the prevention of damage to health, property or the environment or
the reduction of the damage to the environment; the safeguarding of the rights
and interests of bystanders; and the ensuring of the free flow of traffic.
Furthermore, in sections 4 and 19, it clearly provides for the positive
obligations of the police in promoting and safeguarding the exercise of freedom
of assembly.
In
Queensland, the powers of the police are spelt out in the Police Powers Responsibilities
Act 2000, where the police may give directions requiring a person to either
leave the regulated place or be within the regulated place for a reasonable
time limit or move from a particular location for a specified period of time.
In the UK, the powers of the police to arrest without warrant subject to
certain circumstances are stated in sections 12(7) and 14(7) of the Public
Order Act 1986. The powers of the police are spelt out clearly and published to
the public. The UK Human Rights Act 1998, particularly section 3 requires the
police to interpret and apply their powers in a manner which is compatible to
the European Convention on Human Rights.
Section
21(2) of the Act provides that the police officer, in exercising the power to
disperse an assembly may use all reasonable force. The lack of public
disclosure of the standard operating procedure employed by the police, such as
how it handles crowd control or demonstrations evokes distrust in the public as
to how it will apply this provision. The extent of the exercise of the police’s
reasonable force should be clearly identified. It is also important to
establish the positive obligations of the police in promoting and facilitating
all peaceful assemblies.
CONCLUSION
The
introduction of Peaceful Assemblies Act 2011 replacing the present legislative
provision in section 27 of the Police Act 1967 recognizes the spirit of and the
respect for human rights. However, the Peaceful
Assemblies Act 2011 imposes too many restrictions and conditions for the public
instead of facilitating freedom of assembly.
Peaceful public assemblies provide an avenue for the public to express
themselves on issues that are of concern and at the same time peace and
stability are paramount and that public order needs to be maintained at all
times.
As
mentioned above, some of the provisions under the Act impose too many
restrictions and give too much discretionary powers to the police, thus
undermining the rights of the public to organise or participate in peaceful
assemblies.
The
government should amend some provisions in the act that are:
·
To
include a clearer distinction can be made between the definition of an”assembly”
which includes procession and that of “street protest”.
·
The
extension of the right to assemble peacefully without arms to non-citizens as
they too have the right to express themselves and to be heard.
·
A
review of the prohibition against any assembly within 50 meters of any prohibited
places as such prohibition is impractical and unrealistic in most cities and
towns.
·
To
allow the appeal on restrictions and conditions imposed by the police to be
made to the court instead of to the Minister.
·
To
reconsider the provisions on the participation of children in the light of our
treaty obligations under the Convention
of the Rights of the Child (CRC).
·
To
review Clause 13 to put in place a co-operative model which would allow the
police and the organizer of public assemblies to discuss and arrive at a
consensus on matters relating to the assembly for the purpose of facilitating
the assembly in line with the objectives of the Act.
·
To incorporate the provisions of the UN Basic
Principles on the Use of Force and Firearms by Law Enforcement Officials under
Part V of the Act which deals with enforcement.
·
To
ensure full, and not just reasonable, access of the media in public assemblies
under Clause 24.
·
To
review the notification period of 30 days or to provide for exceptions in cases
where it is not feasible or not practicable to meet the requirement of 30 days;
·
To
include a provision to allow external parties such as the Commission, the Bar
Council and other relevant statutory bodies to monitor public assemblies.
The freedom to assemble, march,
protest and demonstrate and to take part in a peaceful assembly is of such
importance that a person cannot be subjected to a sanction, so long as this
person does not commit any reprehensible act on such an occasion. In instances
in which demonstrators do not engage in acts of violence, it is important for
the public authorities to show tolerance toward peaceful gatherings if freedom
of assembly is not to be deprived of all substance. The most important thing
is, the law must be close to international standards, while the reform agenda
is implemented and democracy is promoted, to avoid unnecessary political
controversy and friction.
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